' MUHAMMAD YOUNIS THAHEEM, J.--- Through the instant application, the applicant being appellant seeks impleadment of Nasir Ali Sher son of Yousaf Khan as respondent No,2 being necessary party to the main appeal.
2. In essence, the applicant/appellant has filed the main appeal which has already been admitted for regular hearing on 09.04.2014. On 19.05.2015 during arguments the learned counsel for appellant raised preliminary objection about the suit valuation under section 11 of Suits Valuation Act whereas the learned counsel for the respondent/decree holder raised preliminary objection on the maintainability of appeal that by not arraying Nasir Ali Sher one of decree holder as necessary party, this appeal, being not maintainable is liable to be dismissed.
3. In this respect learned counsel for appellant submitted the instant application under Order XLI, rule 20 read with Order I, rule 10 and Sections 151, 153 of C.P.C. For the impleadment of Nasir Ali Sher being necessary party as respondent No,2 on the ground that inadvertently his name was not inserted/written at the time of drafting of Regular First Appeal.
4. Learned counsel for the applicant/appellant submitted that Nasir Ali Sher son of Yousaf Khan resident of Mohallah Shahbaz, Tehsil Pabbi District Nowshera was impleaded as plaintiff vide order sheet dated 15.06.2013, but in the instant appeal due to inadvertence and over-sighting he was not impleaded. However during trial his name was entered with red ink on the original plaint that is why amended plaint was not submitted, therefore, non-impleadment of said person in the panel of respondents could be a clerical mistake and he prayed for acceptance of instant application for the ends of justice and in this respect placed reliance on PLD 1993 SC 418 (e) (d) (c), 1993 SCM R 2149, PLD 1989 SC 532 (b) and (c), 1999 SCM R 1060.
5. On the other hand, learned counsel for the respondent, argued that appeal is always preferred against the judgment and decree and not against the plaint. Furthef added that this application is barred by time which is liable to dismissal and appeal has also become non-maintainable who referred the judgment cited as 2014 CLD 107 titled as M/s AIMS Corporation (Pvt.) Ltd. And others v.
Habib Bank Ltd.
6. Arguments over application for impleadment heard, record perused.
7. From the perusal of record it reveals that initially Nasir Ali Sher was not added as plaintiff in the original suit but later on vide order of the learned trial Court dated 15.06.2013 he was' impleaded, and his name was entered with red ink as plaintiff No,2. It further transpires that the draftsman of appeal inadvertently did not array the said person as respondent-, which fact came into notice of applicant when preliminary A objection in this context was raised during the course of arguments on 19.05.2015. So in this regard it would be appropriate to reproduce the relevant law envisaged under Order XLI, Rule 20 which reads below:-- "20. Power to adjourn hearing and direct person appearing interested to be made respondents.
Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent."
' In this respect wisdom is also derived from the judgment of Hon'ble Supreme Court of Pakistan in case Said Muhammad and others v. Sardar and others PLD 1989 SC 532 (a) (b) & (c), wherein one Abdul. Ghafoor was not impleaded as a respondent, whose application for impleadment was refused by the first appellate Court and the question before the Hon'ble Supreme Court was as to whether discretion was properly exercised by the appellate Court in terms of Order XLI, Rule 20 of C.P.C. Or not. In this respect The Hon'ble Supreme Court in the referred case enunciated the following rule:- "The legislature in its wisdom by enacting Order XLI, Rule 20 of C.P.C. Empowered the Court to allow a party to be added in an appeal already filed when none could be added after the limitation had run out. The purpose more or less is the same is that with investing the Court with the powers to condone the delay under section 5 of the Limitation Act which is not in terms applicable. The purpose is not for to see as the legislature must be presumed to have visualized situations where there, could be an omission to implead the necessary parties as either as a result of bona fide mistake or on account of no mistake of a party seeking addition of the necessary party or for some other justifiable reasons"
"We are of the view that non-impleading of Abdul Ghafoor as a party in the case was an inadvertent error, and accordingly it was none else but a bona fide mistake which the. Courts below failed to appreciate".... "for the reasons to be given later on, we allow the appeal with costs, set aside the impugned orders of the appellate Courts and remand the case to Additional District Judge-II Sahiwal with the direction to impleaded Abdul Ghafoor as a respondent in the appeal and to dispose it of in accordance with law within six months."
8. The argument advanced by the learned counsel for applicant that appeal is the continuation of suit and the appellate Court can exercise powers to pass an order as the case may require like in the instant case. So before proceeding further, it would be appropriate to reproduce the relevant provisions of Order XLI, Rule 33 as below: "33. Power of Court of Appeal. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order, as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
' In such like situation guidance is also drawn from the judgment of the Hon'ble Supreme Court in case titled as North West Frontier Province Government, Peshawar through Collector and others v.
Abdul Ghafoor Khan (PLD 1993 SC 418). The relevant principle enunciated in the cited judgment is reproduced as: "the provisions of Order XLI, C.P.C. Are not exhaustive. Seemingly, to fill in the gape in the procedure, Section 107(2) was enacted under which the appellate Court has the same powers and is burden with the same duty, as conferred and imposed on the trial Court. Reference here may also be made to Order. XLI, Rule 33, C.P.C., which in order to prevent the ends of justice being defeated gives wide discretionary powers to the appellate Court, to adjudge the rights of the parties, as the ends of justice may demand and pass such decree or order as ought to have been passed. The Court has also inherent powers under section 151, C.P.C., to make such order as may be necessary for the ends of justice and to prevent the abuse of process of the Court."
8. (sic) Moreover, for reference the relevant provisions of Section 107 of C.P.C. Are reproduced below:
107. Powers of Appellate Court.-- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
According to the above referred provisions of law the appellate Court is conferred with powers and is imposed with duties by this Code which are exercised by the Courts in its original jurisdiction with regard to suits and as the appeal is the continuation of suit, therefore, the Court can pass an order to implead a person as party if inadvertently has not been arrayed so in the instant case the appellant had filed appeal but inadvertently did not implead the other decree holder namely Nasir Ali Sher as respondent No,2 which could be a typographical mistake or due to over sighting of learned counsel for the applicant/appellant.
9. Thus in view of above legal position as discussed, we allow this application with the direction to the office to enter the name of applicant in the original appeal as respondent No,2 with red ink by placing Alam Sher as respondent No, 1.
' The main appeal is fixed for arguments on 16.03.2016.